The Equality Tribunal
3 Clonmel Street
Dublin2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2009-034
Yushehenko
V.
Department of Education and Science
(Represented by Mr. David Keane BL instructed by the Chief State Solicitor’s Office)
Case ref ES/2007/0017
Issued 15 May 2009
DECISION NUMBER DEC-S2009-034
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Race ground, section 3(2)(d)- Educational Establishments, section 7(1) – Educational grants, section 7(5)(b)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Mikhail Yushehenko referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 7 February 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts. An investigation, in accordance with section 25(1) of the Acts, commenced on 17 October 2008. An oral hearing, as part of the investigation was held in Dublin on 20 March 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the race ground. Mr. Yushehenko (“the complainant”) maintains that the Department of Education and Science (“the respondent”) treated and continues to treat him less favourably on the ground of nationality contrary to section 3(1) and 7(2)(b) in relation to his entitlement to educational grants. The complainant maintains that the alleged discrimination is on-going. The respondent was notified on 4 December 2006.
3. Case for the Complainant
3.1. The complainant is a Russian citizen who has been granted Leave to Remain on the basis that he is a parent of an Irish born child. He submitted that he had applied for a student support grant to assist him with his studies while he endeavoured to obtain Irish qualifications to assist him in finding full-time employment. His application for such a grant, the complainant submitted, was refused in September 2006 based on the category of his nationality. Subsequent applications, he submitted, have also been refused.
3.2. The complainant submitted that a number of categories of people who have the same status of residency as he has – immigration Stamp 4 - are entitled to apply for educational grants. The complainant submitted that all persons with Stamp 4 have the same rights and entitlements and that therefore he should be qualified to apply. The complainant submitted that he knows of a person who has the same immigration Stamp 4 in his passport on the grounds that he is married to an Irish person. This person, he submitted, is entitled to educational grants from the respondent. The complainant submitted that the respondent has omitted to include his category of persons in the nationality clause of the ‘eligibility of candidates’ criteria in the VEC handbook.
4. Case for the Respondent
4.1. The respondent denies any discrimination on the ground of the complainant’s race. It was further submitted that there was no omission by the Department in relation to including the complainant’s immigration status into section 4.4. of the VEC Third Level Grant Scheme 2006/2007 booklet.
4.2. The respondent referred to section 7(5)(b) of the Equal Status Acts 2000 to 2004 as justification for such treatment. The respondent also submitted a number of other categories of persons who are not currently eligible for an educational grant:
(i) Persons on work permits or their spouses;
(ii) Asylum-seekers;
(iii) Non-European Economic Area nationals who have been granted permission to engage in Business in the State;
(iv) Persons with temporary leave to remain other than persons who have been granted Humanitarian Leave to Remain in the State (prior to the Immigration Act 1999);
(v) A person in respect of whom the Minister for Justice, Equality and Law Reform has granted permission to remain following a determination not to make a deportation order under section 3 of the Immigration Act, 1999;
(vi) Person with Stamp 2 (persons given permission to remain in Ireland to pursue a course of study;
(vii) Retired persons with Stamp 3;
(viii) Spouses of Non-European Union citizens who are European Economic Area Nationals;
(ix) Parents of an Irish Born Child;
(x) Persons granted long term residency – Stamp 5;
(xi) Diplomats.
5. Conclusion of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. The complainant maintained that he is treated less favourably on the grounds of his race/nationality/ethnic origin. The complainant submitted in direct evidence that he has been denied grant assistance by the respondent despite the fact that he has a number 4 immigration stamp on his passport. He also stated in direct evidence that his friend, who also has a number 4 immigration stamp in his passport, has been given grant assistance for his educational pursuits. This friend, he stated, has been granted Leave to Remain on the grounds that he is married to an Irish citizen.
5.3. It is clear from the evidence presented to me that the reason for qualifying or not qualifying for educational grant assistance has nothing to do with the complainant’s race/nationality/ethnic origin per se. It is clear that the reason why he is not qualified to apply for an education grant is not because the complainant has Russian citizenship. The reason why he is not eligible to apply is because his immigration status is based on the fact that he has been granted leave to remain on the grounds of an Irish born child. Therefore, the reason for this treatment is because of his immigration status. Therefore, according to the current rules, a Russian citizen with a different immigration status - one acknowledged by the Minister for Education and Science - would qualify to be eligible for an educational grant.
5.4. I find that the reason why the complainant has not been considered for grant assistance is entirely linked with his immigration status and not with his nationality. If he, a Russian national, was married to an Irish citizen he would be entitled to a grant. As he is a Russian citizen with an Irish born child he is not currently entitled to it. This situation is in accordance with section 7(5)(b) –
The Minister for Education and Science does not discriminate where she or he –
(i) requires grants to be restricted to persons who are nationals of a member state of the European Union, or
(ii) requires such nationals and other persons to be treated differently in relation to the making of grants.
It is clear that such decisions are at the discretion of the Minister and not in any way contrary to the Equal Status Acts.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 7(2)(b) on the ground of his nationality. Therefore I find in favour of the respondent.
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Tara Coogan
Equality Officer
15 May 2009